Legal Implications of the Law of Child Act on the Intestate Rules of Customary Law in Tanzania

  • Fatuma Adam Mgomba Institute of Judicial Administration-Lushoto
Keywords: Child, Intestate Rules, Inheritance, Illegitimate Child, Customary Law, Child Act and Constitution
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This paper explores legal implications of Child Act, 2009 concurrently with the intestate rules of customary law in Tanzania (to be on referred as intestate rules). From the discussion it is evident that little study has been done on this area of law since the colonial masters left 60 years ago. The main issue that this paper identifies is the inequality in provisions of the intestate succession laws, which is contrary to the provisions of equality, brought about by the Law of Child Act dispensation. The article also seeks to unearth contradictory application of the intestate rules of customary law in Tanzania. Reference is made to the leading judicial decisions which directly affects and alters the intestate rules. This is followed by a brief discussion of unequal intestate rules and judicial decisions. The inroads to be made in order to improve children right to parental property in this field of intestate rules are suggested including reform in this area of law. This study is limited to the applicability of codified intestate rules from patrilineal societies as provided under the Local Customary Law Declaration Order (NO. 4), GN 346/1963(to be referred as GN 436/63 to be referred as GN 436)


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Rule 1 up to 51 the Local Customary Law Declaration Order of 1963, GN 436/63.

Section 5(2) of the Child Act of 2009 provides a person shall not discriminate against a child on grounds of gender, race, age, religion, language political opinion, disability health status customs ethnic origin, rural or urban background, birth, socio-economic status, being a refugee or other status.

Rule 22 of second schedule of GN 436/1963

Ishengoma case

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Section 11 (1) b and 11 (4) of JALA. (RE 2019). JALA read to be read together with Section 88. (1) a and s. 89(1) a(i) of The Probate and Administration of Estates Act [CAP 352 R.E. 2019].

Section 11(1)b and 11 (4) of JALA. (RE 2019).

Proviso of s.11(3) of JALA (RE 2019).

Section 11(3) of JALA. (RE 2019).

Maagwi Kimito v. Gibeno Werema (1985) TLR No 132

Rule 26 of GN 436/63

Rule 34,44,45,46,47,48 ,49 and 50 and 52 of GN 436/63)

Masudi Ally vs Chiku Masudi (1992) TLR No. 50

Rule 43 of GN436/63

A case of ChachaMalima v. MwitaKitogo (1986) TLR 117, Hamisi Nyanga v. Omar Sand (1973) LRT 37) and Violet Ishengoma vs Administrator General (1990) TLR No72

Rule 181 of the Local Customary Law Declaration Order of 1963, GN 279/63.

Rule 181A of the Local Customary Law Declaration Order of 1963, GN279/63

Rule 21 of GN 436/63

Rule 25of GN 436/63

Rule 19 of GN 436/63

Rule 29 of GN 436/63

Rule 25 and 23of GN436/63.

Rule 30 of GN 436/63.

Rule 43 of GN 436/63.

Rule 41 of GN 436/63

Rule 42 of GN 436/63

S.5 of Child Act.

Helen Dancer (2017) An Equal Right to Inherit? Women’s Land Rights, Customary Law, and Constitutional Reform in Tanzania. Social and Legal Studies 26 (3) 291-310.

Rule 1 to 5 of GN 436/1963

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Clementina Tikengwa and another Vs TraseasKabogi. [1978] LRT 49

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RubukaNteme v Bi Jalia Hassan (Court of Appeal of Tanzania at Mwanza) (unreported) Civil Case number 19/1986.

S.5 and 10 of Child Act of 2009

Article 12 (1) and Article 13 (1) of the Constitution of the United Republic of Tanzania of 1977

Clementina Tikengwa and Another vs Traseas Kabogi.1978 LRT 49.

Elizabeth Stephen v AG (High Court of Tanzania at Dar es Salaam) (unreported) Miscellaneous Civil Case number 82/2005.

The Local Customary Law Declaration Order GN 436 of 1963

29 October, 2023
How to Cite
Mgomba, F. (2023). Legal Implications of the Law of Child Act on the Intestate Rules of Customary Law in Tanzania. East African Journal of Law and Ethics, 6(1), 30-41.